The criminalization of ‘revenge porn’

By
Cynthia J. Najdowski, PhD, and Meagen M. Hildegrand, University at Albany, State University of New York

January 2014, Vol 45, No. 1

Print version: page 26

Imagine browsing the Internet and discovering that an ex-partner posted sexually explicit images of you online, without your consent, to get back at you for ending the relationship. This kind of online privacy violation, known as revenge pornography or cyber-rape, is alarmingly common. A recent survey of a national sample of adults revealed that approximately 10 percent of ex-partners have threatened to post sexually explicit photos online and about 60 percent of those threats became reality (McAfee, 2013). More victims are coming forward after finding explicit images of themselves on revenge-porn websites, which allow formerly trusted friends and lovers to post such material anonymously without risk of repercussion. Many sites also include victims' contact information, leading victims to fear not only for their reputations, but also for their safety.

Voyeurism laws in many states prohibit the nonconsensual recording and distribution of sexually explicit images of another person. However, those laws do not protect those who either consented to be recorded or recorded images themselves but, in either case, did not consent to the distribution of those images.

State legislatures are beginning to take a stand against revenge porn. In 2004, New Jersey adopted an invasion-of-privacy statute that made it a felony for any person to disclose sexually explicit photographs or images of another person without that person's consent. In October, California enacted a statute that made it a misdemeanor for any person to photograph or record images of another person and distribute those images if they had been taken with the understanding that they would remain private. Bills criminalizing revenge porn are being considered in Maryland, New York and Wisconsin.

Psychological research can guide policymakers as they navigate this rapidly changing area of law. Critics argue that laws criminalizing revenge porn violate the right to freedom of speech. Of note, men perceive this right as more important and view hate speech as less harmful than do women, and this may be due in part to men's being less empathic than women (Cowan & Khatchadourian, 2003). However, revenge porn may not be a "women's issue": Men are more likely than women to report being victims of this online privacy invasion (McAfee, 2013). Thus, research might explore whether efforts to frame the issue as one that affects both men and women would enhance support for statutes aimed at curbing revenge porn.

Another issue psychologists could shed light on is the degree to which laws should be more versus less inclusive. Although the New Jersey and California laws are similar in spirit, the California law applies only if the individual who distributed the images also photographed or recorded them — it provides no protection for victims who recorded intimate images of themselves and assumed those images would remain private. Does public perception of revenge porn depend on whether the intimate images were recorded by victims' ex-partners or the victims themselves? Are victims perceived as more blameworthy or as experiencing less harm in cases involving distribution of "selfies"? Do such victims, in fact, experience less harm? Answers to these questions could guide policymakers as they determine the scope of new laws.

Indeed, research documenting the pervasiveness of revenge porn and the detrimental effect it has on victims' psychological well-being would demonstrate the need for legislation criminalizing this act. Following that, researchers can continue to elucidate this issue by exploring psychological factors that might help potential victims understand the risks associated with sharing intimate images, as well as discover ways to help potential offenders understand the psychological and legal consequences of distributing revenge porn.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).